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1985 DIGILAW 63 (ORI)

PRADIPTA KUMAR MISHRA v. DISTRICT MAGISTRATE, PUN

1985-02-11

J.K.MOHANTY, K.P.MOHAPATRA

body1985
MOHANTY, J. ( 1 ) THIS application under Article 226 of the Constitution of India has been filed by the brother of the detenu Pradyumna Kumar Mishra with a prayer that a writ of habeas corpus be issued against the State of Orissa inasmuch as the detention of the detenu in exercise of the powers conferred under Section 3 (2) of the National Security Act (hereinafter called the Actt) was not in accordance with law. ( 2 ) THE only point that has been raised before us by Mr. Mund, learned counsel appearing on behalf of the petitioner, is that the representation made by the detenu against his detention to the State Government was not disposed of within a reasonable time and the inordinate unexplained delay would vitiate the order. ( 3 ) IN order to decide the question raised reference may be made to certain admitted facts. The District Magistrate, Pun by order dated 12. 8. 84 being satisfied that it was necessary to detain the detenu with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, passed the order of detention under Section 3 (2) of the Act against the detenu on 12. 8. 84 which was served on him on the same day. Accordingly, the detenu was detained in the Special Jail at Bhubaneswar. On 16. 8. 84 the detenu was supplied with the grounds of his detention. The detenu submitted representation to the Secretary to the Government of Orissa in the Home Department, Bhubaneshwar vide Annexure-4 dated 27. 8. 84. The Superintendent of Special Jail. Bhubaneswar forwarded the representation of the petitioner to the District Magistrate, Pun on 1. 9. 84. On 6. 9. 84 the District Magistrate, Pun forwarded the same to the Secretary to Government in Home Department with parawise comments. On 10. 9. 84 the representation was received in the Home Department. On 12. 9. 84 the Secretary, Home Department examined the matter and made his noting. On 19. 10. 84 the Chief Minister passed orders on the representation and the order of the State Government was passed on 22. 10. 84 rejecting the representation of the detenu. On 25. 10. 84 the decision of the Government was communicated to the detenu vide Annexure-5. 9. 84 the Secretary, Home Department examined the matter and made his noting. On 19. 10. 84 the Chief Minister passed orders on the representation and the order of the State Government was passed on 22. 10. 84 rejecting the representation of the detenu. On 25. 10. 84 the decision of the Government was communicated to the detenu vide Annexure-5. ( 4 ) THE case of the State Government, as it appears from the additional counter filed if that the representation dated 27. 8. 84 addressed to the Secretary to Government in Home Department was sent by the District Magistrate, Pun on 6. 9. g4. Immediately on receipt of tile same it was processed and orders from the Addi. Secretary to Government in Home Department was taken on 11. 9. 84 and from the Secretary, Home Department on 12. 9. 84. Thereafter orders from the Chief Minister was taken on 19. 10. 84 and the said decision was communicated to the detenu on 25. 10. 84. During the relevant period the Chief Minister. I was occupied on account of State Assembly sittings, Collector and District Magistrates Conference etc. Besides, the Chief Minister was away from Headquarters for a period of 7 days on a visit to Delhi in connection with Government work. On account of the pre-occupations of the Chief Minister, orders on the representation could not be obtained earlier. ( 5 ) LAW is well settled by a series of decisions of the Supreme Court and of this Court that the representation made by the detenu against the order of detention should be considered by the State Government as soon as possible, i. e. with reasonable despatch and if that is not done it would have the effect of vitiating the order of detention. The question whether the representation submitted by a detenu has been dealt with all reasonable promptness and diligence is to be decided not by the application of any rigid or inflexible rule or set formula nor by a mere arithmetical counting of dates, but by a careful scrutiny of the facts and circumstances of each case. If on such examination, it is found that there was any remissness, indifference or avoidable delay on the part of the detaining authority of State Government in dealing with the representation, it will undoubtedly be treated as a factor vitiating the continued detention of the detenu. If on such examination, it is found that there was any remissness, indifference or avoidable delay on the part of the detaining authority of State Government in dealing with the representation, it will undoubtedly be treated as a factor vitiating the continued detention of the detenu. On the other hand, if the Court is satisfied that the delay was occasioned not by any lack of diligence or promptness of attention on the part of the party concerned, but due to unavoidable circumstances or reasons entirely beyond his control, such delay will not be treated as furnishing a ground for the grant of relief to the detenu against his continued detention. This view is supported by decisions reported in State of Orissa and another v. Shri Manilal Singhania and another1, Vijay Kumar v. State of J. and K. and others2 Raisuddin alias Babu Tomchi v. The State of Uttar Pradesh and another3 and several other decisions of the Supreme Court and of this Court. In this case the representation was made on 27. 8. 84 and on 4. 9. 84 it was received by the office of the District Magistrate, Pun being forwarded by the Superintendent of Special Jail, Bhubaneswar. On 10. 9. 84 the representation was received in the office of the Secretary to Government in Home Department, Bhubaneswar being forwarded by the District Magistrate, Pun with his comments. Ultimately, the order of the Chief Minister was obtained on 19. 10. 84 after being processed in the Home Department. So from the date of representation till the date of communication of the decision there was delay of 52 days. Apart from the delay in processing the application upto the stage of consideration by the Secretary in Home Department, no proper explanation has been given as to why the matter was delayed for a period of more than one month before the order of the Chief Minister was obtained. The explanation now furnished is vague and unsatisfactory. There is no explanation as to why the representation was not placed before the Chief Minister on the day when he was available at the Headquarters. Considering the facts and circumstances of the case we are of the view that the explanation given for the inordinate delay is not satisfactory. The explanation now furnished is vague and unsatisfactory. There is no explanation as to why the representation was not placed before the Chief Minister on the day when he was available at the Headquarters. Considering the facts and circumstances of the case we are of the view that the explanation given for the inordinate delay is not satisfactory. We are, therefore, clearly of the opinion that there was unreasonable and undue delay in the disposal of the detenus representation and that the utmost despatch which is required to be shown was lacking. ( 6 ) WE, therefore, allow the writ application and quash the order of detention of the detenu. Detenu Kusa Pradyuna Kumar Mishra be set at liberty forthwith. There shall be no order as to costs. Writ application allowed.